Ginsburg assails bias against gays in final testimony But court nominee refuses to say how she'd rule on issue

Lyle DennistonTHE BALTIMORE SUN

WASHINGTON -- Supreme Court nominee Ruth Bader Ginsburg, reaching the end of the public inquiry into her legal views, denounced discriminatory treatment of homosexuals yesterday but refused to say what she thinks about any constitutional protection for them.

The constitutional issue, she told the Senate Judiciary Committee, "is a burning question at this very moment . . . and is going to be before the court" -- an obvious reference to the legal battle over President Clinton's new policy on gays in the military services.

Her voice rising and quickening, Judge Ginsburg told Republican Sen. William S. Cohen of Maine: "If I say one word on that subject, that would violate my rule of 'no hint, no forecast, no preview' " of how she would rule on specific issues.

She did go on, however, to tell the senator that "rank discrimination for any reason -- hair color, whatever -- is un-American." What she means by "rank" discrimination, she testified, is "discrimination against a person that is irrelevant to that person's talent, or ability . . . unrelated to that person's worth."

Earlier in the day, when questioned about a 1979 speech in which she criticized bias against homosexuals, she told Democratic Sen. Edward M. Kennedy of Massachusetts: "Rank discrimination against anyone is against the tradition of the United States and is to be deplored."

She emphasized the word "anyone."

Judge Ginsburg, in her third and last day of public testimony, appeared to be grow weary as the day wore on. At times, she testily snapped her answers to senators' questions. And sometimes, her usual deliberate manner gave way to rapid replies, delivered with evident feeling.

Although she was pressed harder for answers yesterday than she had been on the first two days, the nominee still is assured of the committee's overwhelming approval, probably within a week. She seems equally assured of a strong, and perhaps unanimous, final Senate vote by mid-August confirming her to replace retired Justice Byron R. White.

Sen. Orrin Hatch of Utah, the committee's top Republican member, grew impatient with her as she refused, again, to discuss her views on the constitutionality of the death penalty. She scolded him at one point, saying that she would not "pledge" any position on that issue, and added: "That is what you must not ask me, as a judge, to do."

Mr. Hatch also got few responses from her as he criticized the Supreme Court's basic abortion ruling in 1973, but some of those comments by the Utah lawmaker did get him into trouble with the committee's only black member, Illinois Sen. Carol Moseley-Braun, a Democrat.

Senator Hatch had suggested to Judge Ginsburg that the Roe decision had no basis in the Constitution, but rather reflected the same kind of activist judicial approach that the Supreme Court had used in the 1857 decision which said that Dred Scott, a slave who had moved to the "free" territory of Missouri, and other slaves were not citizens and had no legal rights.

Senator Mosely-Braun interrupted, telling Mr. Hatch: "This line of questioning I find to be personally offensive. I find it very difficult to sit here as the only descendant of a slave [and listen to Mr. Hatch] analogize Dred Scott and Roe vs. Wade."

The Utahan said, "I apologize if I offended by a misunderstanding."

Judge Ginsburg quietly disputed Mr. Hatch on his comparison, saying that the Dred Scott decision had dealt with "one individual holding another as property," while the abortion rulings by the court involved "the right of an individual to be free."

That, she said, was "a sharp distinction."

Several times during the hearings, she had denounced the Dred Scott ruling as "wrong, for all time." She said she could give her views on that because, "I can be damn sure that case is never going to come back [to the court]."

Senator Hatch asked the nominee whether she agreed with Supreme Court rulings in 1977 and 1980 declaring that states that were willing to subsidize childbirth did not have a constitutional duty to subsidize abortion as well.

"They are the Supreme Court precedents," she said, but then added: "I have no agenda to replace them."

When reminded that she had told the committee a day earlier that a woman did have a constitutional right to abortion, the judge insisted that she had said that only because she had been questioned about Supreme Court precedents in that area of the law.